Citation Nr: 9915478
Decision Date: 06/03/99 Archive Date: 06/15/99
DOCKET NO. 96-32 437 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to an evaluation in excess of 20 percent for left
acromioclavicular (AC) separation and Sprengel's deformity of
the left scapula.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael J. Skaltsounis, Associate Counsel
INTRODUCTION
The veteran had active service from March 1972 to April 1976.
Initially, the Board of Veterans' Appeals (Board) notes that
a claim for service connection for a left arm disability as
secondary to the veteran's service-connected left shoulder
disability was denied by the regional office (RO) in a rating
decision in December 1993, and was not appealed.
In addition, the Board notes that in February 1998, the Board
remanded this case so that additional evidentiary development
could be accomplished. As will be discussed in the Reasons
and Bases section below, this was done to the extent
possible. The case is now ready for appellate consideration.
FINDINGS OF FACT
1. The veteran's service-connected left AC separation and
Sprengel's deformity of the left scapula is manifested by
complaints of pain to the posterior aspect of the shoulder
and to a lesser degree over the AC joint, positive
impingement sign, tenderness to palpation over the AC joint,
and some degenerative changes, causing limitation of motion
of the left arm and limitation of overhead and/or forceful
activities due to pain, weakened movement, and fatigability,
but not to the extent that forward flexion or abduction is
limited to 25 degrees or less from the side.
2. The veteran's service-connected left shoulder disability
is also manifested by nerve damage.
CONCLUSIONS OF LAW
1. The veteran's left AC separation and Sprengel's deformity
of the left scapula is no more than 20 percent disabling
pursuant to the schedular criteria. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Code 5201
(1998).
2. The criteria for a separate 20 percent evaluation for
nerve damage to the left shoulder have been met. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. §§ 4.25, 4.124(a), Diagnostic
Code 8519 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is seeking an increased disability rating for his
service-connected left shoulder disability. In the interest
of clarity, the Board will initially review the factual
background of this case. The Board will then analyze the
veteran's claim and render a decision.
Factual Background
Although the veteran has most recently indicated that his
left shoulder injury was sustained while playing football
during service, a service medical board from December 1973
reveals that the veteran denied any history of specific
trauma, and that his shoulder problem arose over the course
of the previous six months. During that time period, he
reported decreasing motion and increasing pain. It was also
noted that there was one documented episode of dislocation.
The final diagnosis of the medical board was "Sprengel's
deformity, left, with omovertebral bone with secondary
limitation of motion, left shoulder." Separation
examination in March 1976 revealed a diagnosis of deformity
of the left shoulder secondary to shoulder separation.
Service connection for this disability was originally granted
and a 20 percent evaluation assigned in a November 1976
rating decision, based on service medical records and August
1976 Department of Veterans Affairs (VA) medical examination.
VA medical examination at this time was found to reflect a
prominence of the left AC joint and that abduction was
limited to 90 degrees. Resolving doubt in favor of the
veteran, the RO held that the veteran's congenital condition
was aggravated by service.
VA medical examination in July 1979 revealed that the left
scapula was winged and that flexion and abduction were
limited to 80 degrees. The diagnosis was AC separation,
left, and Sprengel's deformity of the left scapula with
limitation of motion and loss of motor power.
VA outpatient treatment records for the period of July 1994
to July 1996 reflect that in September 1995, it was noted
that the veteran had a history of a left shoulder injury. An
electromyogram (EMG) conducted in October 1995 was
interpreted to reveal some mild atrophy of the left trapezius
and decreased pinprick sensation in the left face, arm, and
leg, in addition to slightly reduced deep tendon reflexes in
the left upper and lower extremity. However, the conclusion
was that this was a normal study without electrophysiologic
evidence of radiculopathy, plexopathy, polyneuropathy or
myopathy. Specifically, no evidence of spinal accessory or
high-cervical radiculopathy was noted. In November 1995, the
veteran complained of numbness and pain in the left upper
extremity, and the veteran was referred for neurological
consultation.
VA neurological consultation in February 1996 revealed
initial problems which included left shoulder and arm
numbness secondary to an injury in the military, and atrophy
of the left trapezius. In March 1996, additional
neurological consultation noted that the veteran's reported a
history of an injury to his left shoulder and leg in Vietnam,
and that he had had complaints of pain and numbness ever
since. It was further noted that the veteran had been
admitted to the hospital for drug rehabilitation in October
1993, and that there was a diagnosis of Wernicke's
encephalopathy and "pancerebellar" degeneration. Motor
examination at this time was considered to be intestable
secondary to questionable pain/cooperation. Sensory
examination at this time apparently did not include the left
shoulder or arm.
Further VA consultation in July 1996 indicated that the
veteran reported a history of hurting his left shoulder in a
parachuting incident in Vietnam and that he was experiencing
tingling and numbness in the left hand. The impression was
history of weakness and paresthesias in the left upper
extremity.
At the veteran's personal hearing in July 1996, the veteran
testified that he had been told that there was muscle
deterioration in his left shoulder that would never go away,
and that there was numbness in his left arm from his shoulder
down to his fingers (transcript (T.) at p. 2). He
specifically denied having any feeling in the left hand or
shoulder (T. at p. 2). He also experienced pain from the
bone "riding" or pressing on his spine, which he claimed
had also caused him difficulty with his legs (T. at p. 3).
This condition had affected his balance, and he had been
using a wheel chair until his wife had run over it with her
car (T. at p. 3). The pain in his left shoulder involved the
whole area around the scapula to the spine (T. at p. 4). The
veteran noted that he could not practice his trade of
upholstery because of his condition (T. at p. 5).
VA outpatient records from August and September 1996 indicate
that VA neurological consultation in August 1996 revealed
complaints which included left arm numbness and pain in the
left neck and shoulder. Additional records from August 1996
reflect that the veteran complained of left arm numbness,
tingling and weakness, and that physical examination revealed
left upper trapezius atrophy and mild winging of the left
scapula. Motor examination demonstrated 4/5 in all muscles
and sensory examination of the left shoulder was negative.
An EMG was interpreted to reveal a lack of voluntary activity
of the left upper trapezius consistent with an old shoulder
injury with accessory nerve damage, but no evidence to
suggest peripheral neuropathy, mononeuropathy or
radiculopathy. September 1996 neurological consultation
revealed an obvious deformity of the left shoulder with a
questionable dislocation and that the left arm appeared
longer than the right. Motor examination indicated giveway
weakness on the left upper extremity and was noted to be an
unreliable examination. X-rays of the left shoulder were
interpreted to reveal a small, spur-like bone deformity on
the distal clavicle likely secondary to trauma. The
impression included old shoulder injury with questionable
chronic dislocation that explained the veteran's pain. It
was further noted that the weakness found was giveway only
and that sensory findings were non-physiologic.
VA medical examination in October 1996 revealed that the
veteran reportedly suffered an AC separation with possible
fracture of the distal clavicle while playing football in
Guam. It was noted that there were no records to confirm or
deny this. The veteran was reportedly treated with
"clavicle straps," and related that he had had continuous
chronic pain in his shoulder since that injury. During the
previous year, he also reported numbness and tingling in his
left hand. He had not had treatment for his shoulder or hand
problem, but complained of worsening shoulder pain. He
believed that his hand was the more chronic problem.
Physical examination revealed an obvious Sprengel's deformity
of the scapula and tenderness over the left AC joint.
Passive range of motion demonstrated a limitation in internal
rotation to only S1. The veteran complained of pain with
extenuated internal rotation and external rotation passively
was to 45 percent. Elevation was noted to be to 120 degrees
with tenderness to that level.
Active range of motion was 90 degrees of elevation with
tenderness. The veteran also had minimal internal rotation
to approximately S1. Additional examination revealed 5/5
biceps, 5/5 triceps, and 5/5 wrist extensors and finger
flexors. Examination of the specific nerve distributions
demonstrated a sharp Tinel's over the median nerve at the
carpal tunnel and mild obvious thenar wasting with only a 3-
4/5 abductor pollicis brevis motor examination. His Phalen
examination was noted to elicit numbness and tingling in the
median nerve distribution within 10 seconds. X-rays were
interpreted to reveal AC osteophyte formation and narrowing
consistent with AC osteoarthritis. There were no other gross
bony abnormalities with the exception of a notable Sprengel's
deformity noted on just about every radiographic view. The
impression was Sprengel's deformity, congenital, severe left
AC osteoarthritis, left shoulder impingement, and severe left
tunnel syndrome.
VA outpatient records for the period of February to July 1997
reflect that in February 1997, the veteran complained of left
shoulder numbness, weakness, and tingling. He further
reported a history of a left shoulder dislocation in 1976
which did not heal properly and that he was now unable to
abduct his left arm or lift weights more than 5 pounds. The
EMG from August 1996 reportedly revealed findings consistent
with old injury to the left shoulder (accessory nerve). The
veteran also reported muscle atrophy of the shoulder girdle
and history of winging of the left scapula. Examination
revealed atrophy of the left supraspinator, trapezius, and
infraspinators, and decreased range of motion with "sud,"
abduction, flexion and winging supination. Motor examination
on the left demonstrated some decreased findings and there
was sensation to palpation over C3-T1 on the left. Deep
tendon reflexes were 2+/4 throughout except at the left
triceps which was indicated to be 0/4. The assessment was
history of accessory nerve injury with left upper extremity
weakness and sensory loss.
At the veteran's hearing before the undersigned Member of the
Board in September 1997, the veteran indicated that he
injured his shoulder during the service in 1974 (T. at p. 3).
At that time, he was medivaced from Guam to Great Lakes
Hospital where he received treatment for a period of nine
months (T. at p. 3). After he was discharged from the
hospital, but before his discharge from service, the veteran
was seen on several occasions for left shoulder problems (T.
at pp. 4-5). Within six months following service separation,
he was treated at the medical center in Little Rock, Arkansas
(T. at p. 6). He was given therapy at this time but it did
not help (T. at p. 6). More recently, he had been told by an
unidentified physician and/or therapist that he had nerve
damage and that he had 10 percent movement (T. at p. 8). He
further indicated that he had arthritis in the shoulder and
that muscle in the neck and shoulder was missing (T. at pp.
8-9).
The veteran noted that he had pain in the shoulder and that
an effort was being made to increase muscle movement through
therapy (T. at p. 10). He currently believed that he was
able to do 10 percent of what he was previously able to do as
a result of his condition (T. at pp. 10-11). The pain began
right behind the neck, went partially down the back, and then
all the way down to the hands (T. at p. 12). There was also
a continual tingling sensation (T. at p. 12).
As noted in the Introduction, in February 1998 the Board
remanded this case so that additional evidentiary development
could be accomplished, including scheduling a physical
examination of the veteran.
VA medical examination in May 1998 revealed that the examiner
was a board certified orthopedic surgeon and had reviewed the
veteran's claims file and service medical records in their
entirety. The veteran reported a history of injuring his
left shoulder while playing football in service. He denied
any prior injury. Approximately six months later, he
reported that he was medivaced from Guam and was hospitalized
in November 1973 for observation. It was noted that he
underwent several evaluations. There were no abnormalities
noted at that time other than a Sprengel's deformity which
the examiner identified as a "high-riding scapula." The
veteran was subsequently given a medical board, and following
discharge, intermittently worked in upholstery. The shoulder
reportedly gave him trouble when he made an effort to do
upholstery and an EMG conducted in August 1996 was
interpreted to indicate some weakness in the upper trapezium
consistent with a spinal accessory nerve injury. He had also
developed AC arthritis. The veteran's main complaints at
this time were diminished range of motion of the shoulder in
addition to pain localized to the posterior aspect of the
shoulder and to a lesser degree over his AC joint.
Physical examination of the shoulder showed active range of
motion to 120 degrees of flexion, 90 degrees of abduction, 60
degrees of adduction, 50 degrees of extension, 90 degrees of
external rotation, and 50 degrees of internal rotation. It
was also noted that the veteran had a slightly positive
impingement sign and tenderness to palpation over the AC
joint. The Sprengel's deformity was noted and X-rays were
interpreted to reveal some degenerative changes at the level
of the AC joint and no recent fracture or dislocation. X-ray
evidence of the Sprengel's deformity was also noted. The
diagnostic impression was Sprengel's deformity of the left
shoulder, congenital abnormality, and mild to moderately
symptomatic AC arthritis of the left shoulder, service
connected. The examiner believed that the AC arthritis
manifested in the left shoulder was a residual from service-
connected injury, but that this was not the veteran's main
complaint. While the veteran was right hand dominant, and
while certain occupations might stress his left shoulder, the
examiner indicated that the veteran was available for
retraining and should be a candidate for sedentary
activities. The examiner went on to comment that with
overhead or forceful activities, the veteran's pain, weakened
movement, and excess fatigability would limit his functional
ability. It was again noted that most of the veteran's pain
was over the posterior aspect of the shoulder and the
examiner suspected that this was mostly due to the congenital
abnormality manifested in the scapula.
Analysis
Preliminary matters
The Board initially finds the veteran's claim to be well
grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v.
Derwinski, 1 Vet. App. 78 (1990). This finding is based on
the veteran's contentions regarding the increased severity of
his service-connected left shoulder disability. See Jones v.
Brown, 7 Vet. App. 134 (1994); Proscelle v. Derwinski, 2 Vet.
App. 629 (1992).
The Board has the duty to assess the credibility and weight
to be given to the evidence. See Madden v. Gober, 125 F.3d
1477, 1481 (Fed. Cir. 1997) and cases cited therein. Once
the evidence is assembled, the Secretary is responsible for
determining whether the preponderance of the evidence is
against the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R.
§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If
so, the claim is denied; if the evidence is in support of the
claim or is in equal balance, the claim is allowed. See also
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Rating under Diagnostic Code 5201
The veteran's left AC separation and Sprengel's deformity of
the left scapula is presently described for rating purposes
as, and is evaluated analogous to, limitation of motion of
the arm under 38 C.F.R. § 4.71a, Diagnostic Code 5201, as
there is no separate diagnostic code for this disability in
VA's Schedule for Rating Disabilities. See 38 C.F.R. § 4.20
(1998) (when an unlisted disease, injury, or residual
condition is encountered, it is permissible to rate the
disability under a closely related disease or injury in which
not only the functions affected, but the anatomical
localization and symptomatology are closely analogous).
On the basis of the facts found, the veteran's left AC
separation and Sprengel's deformity of the left scapula has
been assigned a 20 percent rating under Diagnostic Code 5201
for limitation of motion of the minor arm midway between the
side and shoulder level. The next higher (and maximum)
schedular rating under Diagnostic Code 5201, 30 percent, may
be assigned if range of motion of the minor arm is limited to
25 degrees from the side. It is undisputed that the
veteran's left arm is his non-dominant or "minor" arm.
38 C.F.R. § 4.69 (1998).
The evaluation of a service-connected disability requires a
review of a veteran's medical history with regard to that
disorder. However, the primary concern in a claim for an
increased evaluation is the present level of disability. See
Francisco v. Brown, 7 Vet. App. 55 (1994). In Francisco, the
Court stated that although a rating specialist was directed
to review the recorded history of a disability in order to
make an accurate evaluation, the regulations did not give
past medical reports precedence over current findings. Id.,
at 58. Hence, for purposes of application of the schedular
criteria, the Board assigns the greater weight of probative
value to the medical evidence, in particular, the recent VA
examination conducted in May 1998. As detailed above,
clinical findings on this examination were significant for
both findings as to limitation of motion and also in relation
to the assessment of primarily localized pain associated with
the veteran's congenital deformity. Moreover, as pertinent
deficits in range of motion of the veteran's left arm were
not nearly approximate to the above-cited criteria for a 30
percent rating under Diagnostic Code 5201 (abduction and
forward flexion on this examination were at or above shoulder
level, 90 degrees or more, see 38 C.F.R. § 4.71, Plate I),
there is no clinical evidence of increased ratable impairment
of the left shoulder as contemplated by the law and schedular
criteria set forth under Diagnostic Code 5201. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. § 4.1 (1997); see also Tallman
v. Brown, 7 Vet. App. 453, 464-65 (1995) (regulatory
provisions entitled to deference if not in conflict with
statute).
Additional medical records in the claims file do not support
an increased rating for this disability pursuant to the
specific criteria listed under Diagnostic Code 5201. None of
the more recent VA outpatient medical records document
clinical evidence of impaired range of motion of the left arm
at "25 degrees from the side." The veteran was examined by
the VA in October 1996 at which time the veteran was able to
elevate to 90 degrees with tenderness, which is again not
close to the criteria needed to establish a 30 percent rating
under Diagnostic Code 5201. Moreover, medical records in the
file which are even older do not show findings which would
support a higher rating under Diagnostic Code 5201. VA and
private medical examinations conducted in November 1976 and
July 1979 show forward abduction and flexion to be in the 80-
100 degrees range, and these findings are also insufficient
to support a 30 percent rating under Code 5201.
By reason of the above, the Board concludes that the
disability picture presented supports a rating that is no
higher than the currently assigned 20 percent schedular
evaluation. 38 C.F.R. § 4.7 (1998) provides that a higher
disability rating will be assigned if the disability picture
more nearly approximates the criteria required for that
rating; otherwise, the lower rating will be assigned. As
discussed above, a higher rating under Diagnostic Code 5201
is clearly not in order as there is not a single reported
medical finding of record which shows that the veteran's left
arm is limited to 25 degrees or less from the side.
38 C.F.R. §§ 4.40 and 4.45
The Court has decided as a matter of law that 38 C.F.R.
§§ 4.40 and 4.45 are not subsumed in Diagnostic Code 5201,
and that 38 C.F.R. § 4.14 (anti-pyramiding) does not forbid
consideration of a higher rating based on a greater
limitation of motion due to pain on use or during flare-ups,
or due to weakened movement, excess fatigability, or
incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206-7
(1995). Accordingly, the Court's holding requires the Board
to consider whether an increased rating for the veteran's
left shoulder disability may be in order on three independent
bases: (1) pursuant to the schedular criteria under
Diagnostic Code 5201, i.e., notwithstanding the etiology or
extent of his pain complaints, if the medical examination
test results reflect that range of motion of his left arm is
in fact limited to 25 degrees from the side; (2) pursuant to
38 C.F.R. § 4.40 on the basis of additional range-of-motion
loss in his left shoulder due specifically to his complaints
of pain on use or during flare-ups; and (3) pursuant to 38
C.F.R. § 4.45 if there is additional range-of-motion loss in
his left shoulder due specifically to any weakened movement,
excess fatigability, or incoordination.
The regulation for musculoskeletal system functional loss in
section 4.40 provides:
Disability of the musculoskeletal system
is primarily the inability, due to damage
or infection in parts of the system, to
perform the normal working movements of
the body with normal excursions,
strength, speed, coordination and
endurance. It is essential that the
examination on which ratings are based
adequately portray the anatomical damage,
and the functional loss, which respect to
all these elements. The functional loss
may be due to absence of part, or all, of
the necessary bones, joints and muscles,
or associated structures, or to
deformity, adhesions, defective
innervation, or other pathology, or it
may be due to pain, supported by adequate
pathology and evidenced by the visible
behavior of the claimant undertaking the
motion. Weakness is as important as
limitation of motion, and a part which
becomes painful on use must be regarded
as seriously disabled. A little used
part of the musculoskeletal system may be
expected to show evidence of disuse,
either through atrophy, the condition of
the skin, absence of normal callosity[,]
or the like.
38 C.F.R. § 4.40 (1998).
Section 4.45 provides that factors of disability involving a
joint reside in reductions of its normal excursion of
movements in different planes of motion and therefore,
inquiry will be directed to such considerations as weakened
movement (due to muscle injury, disease or injury of
peripheral nerves, divided or lengthened tendons, etc.);
excess fatigability; and incoordination (impaired ability to
execute skilled movements smoothly). 38 C.F.R. § 4.45
(1998).
The veteran's complaints of left shoulder pain do not warrant
an increased rating under 38 C.F.R. §§ 4.40 and 4.45 because a
preponderance of the medical evidence does not substantiate
additional range-of-motion loss, weakness, excess fatigue or
incoordination in his left shoulder due to physiologic pain.
More specifically, it is now clear from the medical evidence,
including that obtained by the Board pursuant to its February
1998 remand, that the veteran's primary source of pain is
localized to the posterior aspect of his left scapula and his
congenital deformity, and, as shown more fully below, while
the Board has determined that these factors warrant a separate
rating for the veteran's disability under one of the
peripheral nerve diagnostic codes, it does not warrant
consideration of a higher evaluation based on additional
range-of-motion loss, weakness, excess fatigue or
incoordination.
Consequently, given the medical findings of record which do
not reflect range of motion deficits of the veteran's left arm
that even come close to the requirements of a 30 percent
rating under Diagnostic Code 5201, the Board finds that a
preponderance of the evidence is against a finding of
"additional functional loss" due to limitation of motion in
his left shoulder joint that is evidently caused by the amount
of pain shown by recent examination. Consequently, the
benefit-of-the-doubt doctrine under 38 U.S.C.A. § 5107(b) is
not for application in this case as the evidence for and
against the claim is clearly not in equipoise. Cf. Williams
(Willie) v. Brown, 4 Vet. App. 270, 273-74 (1993) (citing
Gilbert, supra, 1 Vet. App. at 54, the Court found
"significant" evidence in support of veteran's claim). In
this case, for the reasons stated, the Board finds that a
preponderance of the evidence to be against the claim. See
Gilbert and Alemany, supra.
Accordingly, the Board concludes that a disability rating in
excess of 20 percent for the service-connected left AC
separation and Sprengel's deformity of the left scapula is
not warranted, based on the application of 38 C.F.R. § 4.71a,
Diagnostic Code 5201 (1998), 38 C.F.R. § 4.40 (1998) or
38 C.F.R. § 4.45 (1998).
Rating under other Diagnostic Codes
The Board has considered the potential application of the
other provisions of 38 C.F.R. Parts 3 and 4, whether or not
they were raised by the veteran. See Schafrath v. Derwinski,
1 Vet. App. 589 (1991). In particular, the Board has given
consideration to evaluating the veteran's service-connected
left shoulder orthopedic disability under a different
Diagnostic Code. The Board notes that the assignment of a
particular Diagnostic Code is "completely dependent on the
facts of a particular case." See Butts v. Brown, 5 Vet.
App. 532, 538 (1993) (en banc). One Diagnostic Code may be
more appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis
and demonstrated symptomatology. Any change in a Diagnostic
Code by a VA adjudicator must be specifically explained. See
Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). However,
in the instant case, the Board finds that Diagnostic Code
5201 is the most appropriate schedular criteria for the
evaluation of the veteran's left shoulder orthopedic
disability. See Tedeschi v. Brown, 7 Vet. App. 411, 414
(1995).
Since there is no currently diagnosed clinical evidence of
ankylosis of the left shoulder or malunion with deformity or
other impairment of the humerus, the veteran's left shoulder
disability is not entitled to a higher rating pursuant to
Diagnostic Codes 5200 (ankylosis of scapulohumeral
articulation) or 5202 (no evidence of loss of head, nonunion,
or fibrous union of humerus). He has never been diagnosed
with ankylosis of the left shoulder or arm and x-rays taken
in May 1998 showed no evidence of fracture or dislocation.
There is no objective medical evidence which shows malunion
or other deformity of his humerus.
Additionally, there is no evidence of any "additional
disability" associated with recent x-ray findings showing
degenerative changes in the left shoulder which would require
consideration of a separate rating pursuant to 38 C.F.R.
§ 4.71a, Diagnostic Code 5003 (1998). Thus, the 20 percent
evaluation currently assigned for the left shoulder under
Diagnostic Code 5201 appears correct, as a rating under this
code would account for the recently documented deficits of
range of motion on forward flexion and abduction. The Board
further notes that if it were to establish a separate rating
for left AC arthritis, it would likely be necessary to reduce
the existing 20 percent rating for orthopedic disability
which is already largely predicated on limitation of
abduction to 90 degrees. The Board also believes that to
provide a separate evaluation for the veteran's minimal
arthritis would violate the anti-pyramiding provisions of
38 C.F.R. § 4.14 (1998), especially with the Board's decision
to assign a separate rating for the additional disability
associated with the nerve damage to the left shoulder. The
evaluation of the same disability under various diagnoses is
to be avoided under 38 C.F.R. § 4.14. In Esteban v. Brown,
6 Vet. App. 259, 261 (1994) the Court held that evaluations
for distinct disabilities resulting from the same injury
could be combined if the symptomatology for one condition was
not "duplicative of or overlapping with the symptomatology"
of the other condition. As indicated above, such is not the
case with respect to the arthritis of the veteran's left
shoulder. See 38 C.F.R. § 4.14; Brady v. Brown, 4 Vet. App.
203, 206 (1993).
Consideration of a separate rating under a neurological
Diagnostic Code is discussed immediately below.
Nerve Damage
The Board has determined that the recent findings of
primarily localized pain and recent findings of nerve damage
warrant consideration of the diagnostic codes which relate to
peripheral nerves and specifically 38 C.F.R. § 4.124(a),
Diagnostic Code 8519. The Board particularly notes that an
August 1996 EMG was interpreted to reveal a lack of voluntary
activity of the left upper trapezius consistent with an old
shoulder injury with accessory nerve damage.
Under Diagnostic Code 8519, complete paralysis of the long
thoracic nerve resulting in the inability to raise the minor
arm above shoulder level or a winged scapula deformity
warrants a 20 percent disability rating. This is the highest
assignable rating for paralysis of the minor long thoracic
nerve. Incomplete paralysis which is severe will be rated as
20 percent disabling whether it is the major or minor arm.
Such ratings are not to be combined with lost motion above
the shoulder level. 38 C.F.R. 4.124a, Code 8519 and Note
(1998).
As noted above, separate disabilities arising from a single
disease entity are to be rated separately. 38 C.F.R.
§ 4.25(b) (1998); Esteban v. Brown, 6 Vet. App. 259, 261
(1994). However, the evaluation of the same disability under
various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1998);
Fanning v. Brown, 4 Vet. App. 225 (1993). In the instant
case, the Board must consider whether the nerve damage and
related pain attributable to the veteran's scapula deformity
are separate and distinct disability manifestations from the
same injury, thereby allowing separate evaluations to be
established under 38 C.F.R. § 4.25 and Esteban. After having
carefully considered the matter, and giving the benefit of
the doubt to the veteran, the Board believes that the
situation presented in this case is similar to that in
Esteban. That is, the veteran's left shoulder orthopedic and
nerve disabilities may be considered to be separately ratable
entities, each having distinct pathology and symptomatology
which is not duplicative or overlapping. Compare Esteban, 6
Vet. App. at 262.
Under Diagnostic Code 8519, complete paralysis of the long
thoracic nerve resulting in the inability to raise the minor
arm above shoulder level or a winged scapula deformity
warrants a 20 percent disability rating, the highest
schedular rating available under that Diagnostic Code.
38 C.F.R. § 4.124(a), Diagnostic Code 8519. The Board
therefore finds that a separate 20 percent evaluation should
be assigned for left shoulder nerve damage with localized
pain and winged scapula deformity, pursuant to 38 C.F.R.
§ 4.124(a), Diagnostic Code 8519. Although the record does
not make a specific reference to damage to the long thoracic
nerve under Diagnostic Code 8519, the Board has considered
the criteria of the inability to raise the arm above shoulder
level and the existence of winged scapula deformity, and,
giving the benefit of the doubt to the veteran, determined
that a separate rating for nerve damage under this Diagnostic
Code is warranted. See 38 C.F.R. §§ 3.102, 4.21, 4.3 (1998).
In denying a rating in excess of 20 percent for disability
associated with left shoulder nerve damage, the provisions
against combining ratings for muscle injuries with those for
peripheral nerve paralysis under 38 C.F.R. § 4.55(a) (1998)
(38 C.F.R. § 4.55(g) prior to June 1997) are applicable. The
ratings currently assigned contemplate limitation of motion,
weakness, etc. of the left shoulder girdle. Thus,
compensation for muscle and neurologic disability in the left
shoulder would be tantamount to "pyramiding," or employing
the Ratings Schedule as a vehicle for compensating the
veteran twice for the same symptomatology. See 38 C.F.R. §
4.14; Brady v. Brown, 4 Vet. App. 203, 206 (1993).
(CONTINUED ON NEXT PAGE)
ORDER
An increased evaluation for left AC separation and Sprengel's
deformity of the left scapula is denied.
A separate 20 percent rating for nerve damage to the left
shoulder is granted, subject to the laws and regulations
governing the payment of monetary benefits.
Barry F. Bohan
Member, Board of Veterans' Appeals